Natural Resources Defense v. U.S. Dept. of State

• Decision Date: 29 September 2009
• Docket Number: Civil Case No. 08-1363 (RJL).
• Citation: 658 F.Supp.2d 105
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, et al.,<SMALL><SUP>1</SUP></SMALL> Defendants, and TransCanada Keystone Pipeline, LP, Defendant-Intervenor.
• Court: U.S. District Court — District of Columbia

Page 105

658 F.Supp.2d 105

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, et al.,¹ Defendants, and TransCanada Keystone Pipeline, LP, Defendant-Intervenor.

Civil Case No. 08-1363 (RJL).

United States District Court, District of Columbia.

September 29, 2009.

Aaron S. Colangelo, Natural Resources Defense Council, Washington, DC, Aaron M. Bloom, Mitchell S. Bernard, Nancy S. Marks, Natural Resources Defense Council, Inc., New York, NY, Selena K. Kyle, Natural Resources Defense Council, Inc., San Francisco, CA, for Plaintiffs.

Luther L. Hajek, Romney Sharpe Philpott, U.S. Department of Justice, Washington, DC, for Defendants.

Peter Richard Steenland, Timothy K. Webster, William E. Gerard, Sidley Austin, LP, Washington, DC, for Defendant-Intervenor.

MEMORANDUM OPINION [# 25 and 26]

RICHARD J. LEON, District Judge.

The Natural Resources Defense Council and certain local affiliates (collectively, "NRDC") bring this action seeking declaratory and injunctive relief against the United States Department of State and various officers acting in their official capacity (collectively, "State Department") on the ground that the State Department violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f, by issuing a presidential "permit" to defendant-intervenor TransCanada Keystone Pipeline, LP ("Keystone") for a cross-border oil pipeline between the United States and Canada based on an inadequate assessment of the environmental impacts.² The State Department and Keystone (collectively, "defendants") move to dismiss the action for lack of jurisdiction under Rule 12(b)(1), or for failure to state a claim under Rule 12(b)(6), because no cause of action exists under NEPA or any other federal statute to challenge the State Department's actions in this case. For the following reasons, the Court agrees with the defendants and therefore GRANTS their respective Motions to Dismiss.

BACKGROUND

Executive Order 13,337 delegates to the State Department the President's authority to issue permits for the construction of an oil pipeline across the border of the United States if it finds that issuance of the permit to the applicant "would serve the national interest." Exec. Order No. 13,337, § l(g), 69 Fed. Reg. 25,299 (Apr. 30, 2004). Before issuing the permit, the State Department must consult with various departments and agencies specified in the Order. Id. § 1(b)(ii). If any of those departments or agencies disagrees with the State Department's proposed decision, then the State Department must refer the permit application to the President "for consideration and a final decision." Id. § 1(i). Otherwise, the State Department makes the final decision.

Over three years ago, Keystone filed an application with the State Department for a presidential permit to build an oil pipeline across the United States—Canadian border. (Amend. Comp. [#21] at ¶ 41). As part of its review process, the State Department released a draft Environmental Impact Statement ("EIS") and then a final EIS. (Id. at ¶¶ 48, 51). Not long after issuing the final EIS, the State Department released a Record of Decision ("ROD") announcing its intent to issue a presidential permit for the pipeline project based on its determination that the permit would serve the national interest. (Id. at ¶ 58). The permit issued shortly thereafter. (Id. at ¶ 59).

The NRDC brought this action against the State Department, which Keystone joined as an intervenor-defendant, on the ground that the State Department violated NEPA by issuing the presidential permit to Keystone based on a deficient EIS. (Id. at ¶ 71). NEPA directs that "all agencies of the Federal Government shall ... include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement" on environmental impacts. 42 U.S.C. § 4332(2)(C). The NRDC claims that the State Department's final EIS did not comply with NEPA and its implementing regulations for numerous reasons, the details of which are not relevant now. (Amend. Comp. [# 21] at ¶¶ 65-71). As a result, the NRDC seeks a declaration that the State Department's failure to prepare an adequate EIS violated NEPA and that the State Department's decision to issue the presidential permit based on that EIS violated the Administrative Procedure Act ("APA"). (Id. at 19). The NRDC also seeks an injunction directing the State Department to revoke the permit and to require that Keystone remove the portion of the pipeline subject to the permit and that it cease any further construction or activity until the State Department complies with NEPA and the APA. (Id.).

ANALYSIS

Defendants move to dismiss the NRDC's Amended Complaint on the ground that no legal basis exists to challenge State Department decisions on behalf of the President to issue presidential permits under Executive Order 13,337. Defendants assert that the NRDC cannot point to any statutory authority that creates a cause of action by which this Court may review the State Department's conduct in this case. Defendants further argue that a private right of action is expressly foreclosed by the Executive Order itself. See Exec. Order No. 13,337, § 6, 69 Fed. Reg. at 25,299.

Although defendants couch their motion primarily as a jurisdictional challenge under Rule 12(b)(1), the more appropriate procedural vehicle is Rule 12(b)(6). The NRDC claims a violation of NEPA and the APA, both of which raise a federal question covered by 28 U.S.C. § 1331.³ The crux of defendants' various arguments is not whether the NRDC has presented federal claims, but whether those claims are enforceable against the State Department when it is acting on behalf of the President pursuant to Executive Order 13,337.⁴ Whether there is a cause of action is not a jurisdictional question; rather, "the court must assume jurisdiction before deciding whether a cause of action exists." John Doe v. Metro. Police Dep't of D.C., 445 F.3d 460, 466 (D.C.Cir.2006); see also Reliable Automatic Sprinkler Co., Inc. v. Consumer Prod. Safety Comm'n, 324 F.3d 726, 731 (D.C.Cir.2003) (stating that, where there is no cause of action under the APA, dismissal is properly invoked under Rule 12(b)(6), not under Rule 12(b)(1)). Accordingly, the Court will treat defendant's motion as one for dismissal under Rule 12(b)(6) for failure to state a claim. In doing so, the Court accepts the NRDC's factual allegations as true and draws all reasonable inferences in the NRDC's favor. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). Dismissal is proper if the NRDC is unable to prove any set of facts in support of a claim that would entitle it to relief. Id.

The NRDC argues, as it must, that it is entitled to relief under the APA. It is well-established that NEPA does not create a private right of action. Pub. Citizen v. U.S. Trade Representative, 5 F.3d 549, 551 (D.C.Cir.1993). Nor does Executive Order 13,337 affirmatively create a cause of action to enforce its terms. Indeed, it does the opposite by expressly foreswearing that it creates any "right, benefit, or trust responsibility, substantive or procedural, enforceable at law or in equity." Exec. Order No. 13,337, § 6, 69 Fed. Reg. at 25,299. As a result, to enforce NEPA in this case, the NRDC must rely on the general provisions of the APA, which provide for judicial review in cases where a party suffers "legal wrong because of agency action" or is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. Agency action is not reviewable, however, unless it is final, id. § 704, and agency action is not final unless it satisfies two conditions: "First, the action must mark the `consummation' of the agency's decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which `rights or obligations have been determined,' or from which `legal consequences will flow.'" Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal citation omitted). Given these provisions, the NRDC's argument is rather straightforward. The NRDC and its members contend that they are aggrieved by the State Department's decision to issue a presidential permit to Keystone based on an EIS that does not comply with NEPA. This agency action is final because it took effect in accordance with the Executive Order without further review by the President. No party alleges that the State Department referred, or was required to refer, Keystone's application to the President for a final decision under subsection 1(i) of the Executive Order.

The NRDC's argument thus rises or falls on the existence of an APA cause of action in this particular case. Defendants argue that agency action pursuant to a delegation of the President's inherent constitutional authority over foreign affairs is tantamount to an action by the President himself. I agree. The State Department, here, is not acting pursuant to any congressional delegation of power, nor is it even acting pursuant to an Executive Order that was promulgated to carry out a particular congressional mandate.⁵ To the contrary, the State Department is acting solely on behalf of the President, and in doing so, it is exercising purely presidential prerogatives. Defendants have amply documented the long history of Presidents exercising their inherent foreign affairs power to issue cross-border permits, even in the absence of any congressional authorization. (See State Dept. Mot. to Dismiss [# 26-2] at 11-13; Keystone Mot. to Dismiss [#25] at 2-4). Because the President is not an "agency" for purposes of the APA, presidential action is not subject to judicial review under that statute. Franklin v. Massachusetts, 505 U.S. 788, 800-01, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992); Dalton v. Specter, 511 U.S. 462,...